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Federal defenders potentially excluded from historic clemency drive

Ambitious effort to extend presidential clemency to thousands of inmates is at risk of stalling because of a legal snag

Six months after the Justice Department called on defense lawyers to help it identify and vet candidates for its clemency drive, there is concern that the federal defenders — whom the DOJ invited in as key partners — might never have been authorized to participate in the first place. This could leave the initiative without the manpower it needs.

A high portion of the potential pool of inmates is represented by the federal defenders, and they have been critical in the formation and operation of Clemency Project 2014, a coalition of defense lawyers and advocates created in the wake of the DOJ’s call. (The vast majority of those prosecuted in federal courts receive court-appointed lawyers; in districts where there is a federal defenders’ office, they generally handle 60 percent of those cases.)

"Federal defenders include some of the best courtroom and appellate advocates in the United States. Having them work with the Clemency Project 2014 has been important to the work we are doing,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who has been training lawyers for the Clemency Project. “Losing them as a part of the coalition would be a significant challenge.”

The courts appoint federal defenders — under the Criminal Justice Act — to represent indigent defendants in federal judicial proceedings, a service paid for by the public. Now the courts’ highest authority is considering whether those appointments can extend to representing clients in their petitions to the president for mercy, a process conducted wholly in the executive branch.

Deputy Attorney General James Cole holds up a list of guidelines during a news conference at the Justice Department in April. Susan Walsh / AP

The partnership between the Justice Department and the defense bar was initiated by the Obama administration in January, when Deputy Attorney General James Cole quietly floated the idea at a New York Bar Association lunch of using the president’s clemency power to commute the sentences of federal inmates mostly convicted under harsh drug laws and policies drafted in the 1980s, which have since been repudiated by bipartisan scholars and lawmakers.

Defendants arrested today face less time for the same crimes, but thousands remain behind bars serving prison terms that current reform efforts — which have lowered many drug sentences, though not necessarily retroactively — have been unable to change. The clemency effort, Cole said, would address concerns of fairness by shortening those sentences as well as alleviating the budgetary strain of a large federal prison population.

In February, the Justice Department invited representatives from a select group of its traditional rivals — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the federal defenders — to a series of meetings to discuss how the process might be structured. (A conservative organization, Judicial Watch, is currently suing the Justice Department to make those discussions public.)

The criteria that eventually emerged called for inmates who were nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have to have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.

While the Justice Department will ultimately decide which inmates to recommend to the president for clemency, it is the defense bar that has been tasked by the government with most of the upfront work, including identifying worthy candidates, recruiting and training the vast numbers of pro bono attorneys needed to assist the effort, preparing the petitions and vetting which petitions reach the Justice Department’s Office of the Pardon Attorney.

For its part, in May the Justice Department notified all federal inmates of the initiative, distributing surveys through the Bureau of Prisons that referred them to the Clemency Project should they want a pro bono attorney to prepare their petition.

Cynthia W. Roseberry, the newly appointed head of the Clemency Project 2014, a former federal defender herself, said that “we look forward to continuing our collaboration with the federal defenders,” and that she remained confident that the project has the resources to identify all prisoners who meet the criteria for clemency and to ensure they have access to counsel at no cost.

But seasoned defense attorneys who underwent the Clemency Project’s training this month, and lauded the effort, raised concerns about inexperienced though well-intentioned lawyers taking on such complex cases. Mary Davis, who has already been appointed by a judge to represent an inmate the judge believed to be a deserving clemency candidate and who took the training, said, “We believe that lawyers not experienced in federal criminal law will have a difficult time doing a thorough job on a petition.”

The federal defenders declined to comment on internal discussions relating to when, if ever, consideration was given to whether they were statutorily authorized to participate in such a broad clemency effort. Kathy Nester, the federal public defender for the district of Utah and the defenders’ representative on the Clemency Project 2014 steering committee, referred to standing orders by judges in six districts already appointing defenders, saying it was evidence that the work logically falls to them. (At the time of publication, the administrative office of the courts was only able to confirm that there were four such standing orders.)

“It was a federal public defender's office that submitted the successful clemency petition in the case of Ezell Gilbert late last year,” said Nester, referring to one of the eight inmates whose sentences President Barack Obama commuted in December 2013. “This was done at the urging of [the Justice Department] and federal judges who had reviewed the case. Defenders have approached the clemency project with a good faith belief that we are supposed to take positions that are in the best interest of our clients, and that this historical opportunity for relief from unreasonable sentences would certainly fall within that mission.”

Similarly, in June, a federal defender motion in Cleveland asked for a court appointment to do clemency petitions, noting that it was the deputy attorney general, not the inmates themselves, who had requested that the defense bar seek clemency for qualified inmates. In response, the DOJ asked the court to defer appointing the defenders until the administrative office of the U.S. courts makes its decision as to whether the defenders are authorized to do such work.

Neither the department nor the U.S. Attorney’s office in Cleveland would say whether this was now a department-wide position.

Meanwhile, the administrative office of the courts declined to cite any timetable for a decision, though a spokesperson noted that the next judicial conference meeting, where such a matter would likely be finalized, will take place in mid-September.

The more than 20,000 federal inmates who have taken up the DOJ on its invitation and asked Clemency Project 2014 to review their cases now await those who set these wheels in motion to sort it all out.